P. v. Foster
On February 13, 2008, appellant, Ricky T. Foster, filed an ex parte motion in the Fresno County Superior Court requesting the court to recall his 1994 convictions for carjacking Pen. Code, 215, subd. (a), count one)[1]; assault with a firearm ( 245, subd. (a)(2), count two); kidnapping during the commission of a carjacking ( 209.5, subd. (a), count three); kidnapping ( 207, subd. (a), count four [acquitted on count four]); kidnapping for robbery ( 209, subd. (b), count five); and robbery ( 211, 212.5, subd. (b), count six). On February 28, 2008, the trial court denied the ex parte motion requesting recall of sentence on the ground the court was without jurisdiction to recall the commitment which occurred over 14 years ago: the 120-day limit set forth in section 1170, subdivision (d)[ had long since passed and appellant has no standing to make a motion to recall the remittitur pursuant section 1170. On March 28, 2008, appellant filed a notice of appeal from the trial courts February 28, 2008, order denying relief. On April 3, 2008, this court issued a briefing order directing appellant to address (1) whether the denial of his motion to recall sentence is an appealable order, and (2) should the appeal be dismissed.
The appeal is dismissed.
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